Who Can Witness a Will?
Legal Requirements & Best Practices.
We all know that your Will is one of the most important documents you will ever sign.
English law allows you the freedom to leave your estate to whomsoever you please.
There is formality to Wills as set out in the legal requirements under the Wills Act 1837.
Witnessing a Will correctly is essential to ensure validity of the Will.
In an age where the number of family disputes is on the rise, choosing the right witnesses is crucial to ensure the Will is valid, refute allegations of undue influence or challenges to the Will’s validity are avoided.
Read on to find out the legalities of signing your Will properly and the pitfalls to avoid.
Addressing common concerns such as whether a beneficiary witness, executor of a will, or a civil partner of a beneficiary can act as a witness.
The impact of modern approaches, including video-conferencing, on Will signing during covid and the removal of remote witnessing after covid measures were lifted.
Who Can Witness a Will? Good Will Witnesses Understanding the Legal Requirements
The Will signing process calls for witnessing a Last Will to include that the Will needs to be signed by the person making the Will, in the presence of two witnesses.
A witness to a Will should be of sound mind and capable of understanding their role as witness.
The role of a witness… a witness does not need legal expertise but must meet specific criteria.
Chosen witnesses must be:
- Independent adults with no personal interest in the contents of the Will as beneficiaries.
- Over 18 years old in England and Wales.
- Be present at the time of the testator’s signature. Best advice is that the first and second witness are in the same room as the testator when he or she signs the Will and be in the presence of each other as the Testator and witnesses sign.
Who Cannot Witness a Will? Avoiding Conflicts of Interest
- Beneficiary witness: Why a beneficiary of your will or their civil partner/spouse cannot witness the document. This would raise a presumption undue influence or interference with the testator.
- An executor witness with a share of the estate.
- Avoid family members or anyone who could later be accused of undue influence.
- Legal complications if a witness dies before the testator.
Who Should You Choose as Witnesses?
- Independent witnesses are the best choice for ensuring a valid Will.
- Solicitor witness are another good choice, it is implied that a legal professional provides additional security from their knowledge of correct legal procedure.
- Medical practitioner – when testamentary capacity is in question, having a doctor witness may support the mental capacity of the testator. It is a good idea to ask the doctor to produce a statement of his or her assessment of mental capacity.
Best Practices for Witnessing a Will
Ensure Testamentary Capacity
If you’re helping out an elderly relative, you must ensure that testator has testamentary capacity and be of sound mind. That means, they have no impairments of the mind like dementia or Alzheimer’s disease.
If your loved one has one of these conditions, it does not rule out them executing a Will. Medical evidence should be sought if there are doubts about mental capacity. The medical practitioner should be asked to provide a mental capacity statement and this could be kept with the Will.
Proper Execution and Form of Attestation
Steps to follow for a legally valid Will signing the testator and witnesses should be together in the same room. There is no need for the witnesses to read the Will. All they need to be aware of is that it is the testator’s Will.
How witnesses should sign and provide their full name, address and email address.
What Happens If a Witness Dies or Becomes Unavailable?
Normally there are no legal implications of a witness dying before the Will is executed. In the vast majority of Probate cases, witnesses to the Will are rarely called upon to provide evidence as to the signing of the Will.
Common Questions About Witnessing a Will
Can a solicitor witness a Will?
Yes, a solicitor is an excellent choice as a witness.
Can an Attorney witness a Will?
Yes, an attorney appointed under a Lasting Power of Attorney can be a witness so long as they are not a beneficiary.
Is video-conferencing allowed for witnessing Wills?
No. It was temporarily during the Covid 19 pandemic, but these measures have been taken away and Wills must now be witnessed in person again.
What if my chosen witness is a blind person?
It is more prudent to ask a fully sighted person to witness your Will. This is because they should be able to see the Testator placing their signature on the Will.
Should my executor witness my Will?
Only if they are not a beneficiary.
Can a family friend witness a Will?
Yes, so long as they are not a beneficiary of the Will.
Will invalid Wills be deemed void for lack of due execution?
Yes, the Wills Act 1837 has strict rules on how the Will should be signed. If these aren’t followed, the Will will de deemed void. The rules of intestacy kick in if the Will is deeded invalid.
Why Choose Our Legal Services for Will Writing & Witnessing?
- Experienced Will-writers and solicitors ensuring full 360 degree view of your estate and family set up.
- Legal advice on Wills, Lasting Powers of Attorney, and Dispute Resolution.
- In-person options for your convenience and peace of mind.
- Contact us today via our contact form, phone number, or email address for a consultation.
Book your appointment now by completing the form below, or calling us on 020 7499 2605, we are happy to help.
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